Australia's immigration policy is stated to be selective but non-discriminatory in terms of race, nationality, creed or sex and to be guided by principles of humanity, equity and compassion.
The Migration Regulations provide more than 40 types of permanent entry visa, which can be conveniently divided into three major groups:
- family migration visas (see: "Family migration", below);
- economic migration visas (see: "Economic migration", below); and
- humanitarian / refugee visas (see: "Humanitarian entry", below).
The guiding principles on which immigration policy is based, as published in DIAC's Procedures Advice Manual, are as follows.
- The Australian Government alone will determine who will be admitted to Australia.
- Admission will be consistent with the laws enacted by the Federal Parliament to regulate immigration.
- Only an Australian citizen has a "right" to enter Australia.
- Immigration policies will be determined by Australia's national interests as defined by major government policies and strategies for Australia's social, economic and cultural development. Policies will seek a harmony of outcomes between economic and social interests and respond to Australia's foreign policy interests.
- Immigration will respond to the needs of Australian citizens or Australian permanent residents by upholding, in accordance with government policies and strategies, close family reunion and humanitarian assistance.
- Immigration policies will be non-discriminatory on grounds of race, colour, national or ethnic origin, sex and religion.
- Applicants may be considered for immigration as individuals and family units but will not be considered as community groups.
- Migrants are expected to respect the institutions and principles which are basic to Australian society, including parliamentary democracy, the rule of law and equality before the law, freedom of the individual, freedom of speech, freedom of the press, freedom of religion, equality of the sexes and universal education. Reciprocally, Australia will be committed to the equal participation of migrants in society.
- Citizenship will be given due recognition as a symbol of commitment to Australia and its future.
- Immigration policies will be determined and implemented in such a way as to maintain and protect the health, safety and good order of Australian society.
In recent years, immigration policy has served a range of national and community needs, including:
- reuniting close family members in recognition of kinship ties and the bonds of mutual dependency and support within families;
- responding to Australia's international humanitarian objectives in respect of refugees;
- supplementing the supply of skills needed in the labour force;
- promoting the inflow of overseas technology and expansion of the business sector; and
- assisting in Australia's population growth.
Generally, applicants seeking entry for the purpose of residence must satisfy the following criteria.
- They must attend an interview with an Australian migration officer overseas and receive a satisfactory evaluation of various economic and personal factors relevant to satisfactory settlement in Australia.
- They must be of good character (this involves a police and security check).
- They must be of good health and undergo a medical examination by a medical practitioner approved by the Australian government.
- They must have the intention to reside permanently in Australia.
- They must satisfy the specific criteria under the Regulations for their class of permanent visa.
Only certain family members resident overseas can be sponsored to enter by relatives who have permanent residence or citizenship in Australia.
Relatives are divided into nine visa categories and different tests apply to each category. A tenth category (called a "prospective marriage" visa, see: Subclass 300 in Sch.2 of the Migration Regulations) allows for temporary entry of fiancés and fiancees, who must marry within nine months of arrival in Australia. The main permanent visa categories of family migration are given in Schedule 2 as:
- spouse visa (includes de facto spouses): see Subclasses 309 & 100 (note that such spouses must now wait two years after arrival before getting permanent residence, unless they have a "long-term marriage", see: "Subclass 801: Partner (Residence) visa", above);
- child visa: see Subclass 101;
- orphan relative visa: see Subclass 117;
- Skilled – Regional Sponsored (Provisional) visa (Subclass 475): included here even though it is a temporary visa because it leads on to a permanent visa (Subclass 883) and the sponsor can be a relative who has lived anywhere in Victoria for at least 12 months before the visa application. Sponsoring relatives in this visa include grandparents and first cousins;
- other family visa: includes aged dependent relatives, remaining relatives and carers: see Subclasses 835, 836, 837 and 838;
- adoption visa: see Subclass 102;
- parent visa: see Subclass 103;
- skilled sponsored migrant visa: see Subclass 176.
On 1 July 2009 the Migration Regulations were amended to:
- remove discrimination between same-sex and opposite-sex de facto couples, and between the children of same-sex and opposite-sex de facto couples; and
- ensure that the Regulations are consistent with amendments made by Part 2 of Schedule 10 to the Same-sex Relationships (Equal Treatment in Commonwealth laws – General Law Reform) Act 2008 (Cth) to the Migration Act.
For full details of these changes see: www.immi.gov.au/legislation/amendments.
You must be either an Australian citizen or a permanent resident and must be aged 18 years or over. However, if you are under 18 years and sponsoring a spouse, parent or fiancĂƒ©s or fiancees, your parent or close relative, guardian and in some cases even a community organisation may sponsor. In many cases (but never spouse cases) you must also have been resident here for a reasonable period (currently regarded as two years by DIAC unless exceptional circumstances exist). You must ensure that your relative will have accommodation and sufficient money to look after themself for at least 12 months after arrival. A promise is required that you will provide general information and advice to help your relative settle.
For the Skilled Sponsored Migrant visa (Subclass 176) you, your spouse or your interdependent partner must be related to your sponsor as one of the following:
- a non-dependent child, including an adoptive or step-child;
- a parent, including adoptive or step-parent;
- a brother or sister, including adoptive or step-siblings;
- a niece or nephew, including adoptive or step-niece/nephew; or
- an aunt or uncle, including adoptive or step-aunt/uncle.
Note: Although this visa does not allow sponsoring relatives to be grandparents or first cousins (unlike the Subclass 475 visa above) it does however, also allow a sponsor to be a state or territory government if the person has an occupation required in that state. To check if the State of Victoria requires your relative's skills go to www.liveinvictoria.vic.gov.au and follow the links to "Skilled visas".
If you are sponsoring parents or any relatives in the other family visa category (or relatives outside these categories who are unable to support themselves), you will be required to sign an assurance of support and you will be responsible for their financial support for the first two years after entry.
All visa applications that require an assurance of support are now subject to the following rules.
- The validity of the Assurance is two years, rather than five years as previously.
- Liability will cover any payments of Special Benefit, Job Search or Newstart Allowances made by the Department of Social Security (DSS) to the migrating relatives (parents, preferential and concessional classes) during those two years.
- The Assurance consists of a refundable bond of $5,000 per principal applicant and $2,000 per other adult. The bond will be returned (with interest) two years after the migrant's entry into Australia, provided that the DSS makes no claim on the money.
- The Assurance also requires the payment of a non-refundable health levy of $1,050 per visa applicant. Adults and children are treated equally.
It should be noted that the sponsor does not necessarily have to be the person who supplies the Assurance of Support, nor even a relative. The assurer must just be someone with sufficient assets or income to be acceptable to Centrelink (as this Department has been given the task of assessing Assurances of Support for DIAC). However, given the large sums of money now involved in sponsoring relatives, it will be fairly rare that a friend of the family will want to sign such a document and pay up-front the money involved. Accordingly, assurers need to consider their obligations carefully, as even the refundable bond may not be the limit of liability if a greater amount is paid by Centrelink to the migrating relative during the first two years. (The conditions are contained on Form 28: read it carefully.)
Migrants who apply to migrate and have been issued with a visa after 1 March 1993, and who do not have functional English, will pay a sliding charge based on their migration visa class. This can range from zero fees for spouse visas to $4,110 for skilled-Australian sponsored visas and $8,240 for the principal applicant in the Business Entry classes.
To receive a visa in the other family visa class, you must be one of the following:
- an aged dependent relative (Subclass 114), i.e. you have never married or are widowed, divorced or formally separated, you have been dependent on the sponsor for a reasonable period and are old enough to be granted an age pension under the Social Security Act (see: reg.1.03 Migrant Regulations);
- a remaining relative (Subclass 115), i.e. you must be the last remaining brother, sister, parent, or the step-relative within one of these degrees of relationship, not living in Australia;
- a carer (Subclass 116), i.e. a person willing and able to give substantial continuing assistance to an Australian relative who has a medical condition which impairs their ability to attend to the practical aspects of daily life. The Australian relative's impairment must be rated in an examination by a Commonwealth Medical Officer to be at least 30% as shown under the Social Security Impairment Ratings Tables. The need for assistance must be likely to continue for at least two years. Also, it must be proved that no other relative, community or welfare organisation in Australia is reasonably able to provide the Australian relative with the necessary assistance (see: reg.1.15AA).
To receive a visa in the Child (Migrant) class you must:
- be a natural or step-child (under 18 years, or between 18 and 25 years if still in full-time study) of an Australian citizen or permanent resident (certain adopted children also qualify): Subclass 101; or
- have been adopted overseas by an Australian citizen or permanent resident who has been residing overseas for more than 12 months (at the time of the visa application): Subclass 102; or
- be an orphan relative, i.e. an unmarried orphan under 18 years and a relative of an Australian citizen or resident. An applicant can still be an "orphan" even if both parents are alive but their whereabouts are "unknown" or they are "permanently incapacitated" (by physical, legal or other factual reasons) and thereby unable to care for the child (see: reg.1.14 Migration Regulations).
To receive a Skilled Sponsored Migrant visa (Subclass 176), you, your spouse or your interdependent partner must be either sponsored by a State or Territory or by:
- a non-dependent child, including an adoptive or step-child;
- a parent, including adoptive or step-parent;
- a brother or sister, including adoptive or step-siblings;
- a niece or nephew, including adoptive or step-niece/nephew;
- an aunt or uncle, including adoptive or step-aunt/uncle.
Also, you must pass the "points test" (see below).
If you are sponsoring your parents, they can only be considered in the parent visa category if they meet the balance of family test. The balance of family test requires at least half of their children to be living permanently in Australia, or that more of their children live permanently in Australia than in any other country. In order to count as living permanently in Australia, those children must be:
- Australian citizens;
- Australian permanent residents who are usually resident in Australia; or
- eligible New Zealand citizens who are normally resident in Australia
The test is applied on the following basis:
- all children of both parents are counted, including any children of a de facto spouse;
- all children of both parents are counted, regardless of whether the children are dependent or self-supporting, married, single or divorced;
- all children of either of your parents from a previous marriage or relationship are counted, as well as any children adopted by either parent and any children in institutions (except for children born or adopted after the relationship or marriage ceased); and
- children whose whereabouts are unknown or cannot be verified are counted as being in your parents' country of usual residence, unless their death can be presumed by their absence.
Children who are not counted in the test are:
- children removed by court order, by adoption or by operation of law (other than marriage) from the exclusive custody of the parent;
- children resident in a country where they suffer persecution or abuse of human rights in a situation such that it is not possible to reunite the children and the parent in another country; and
- children resident in a refugee camp.
Other than in the exceptions noted above, the social and cultural values of your family, or the economic circumstances of the children, are not taken into account in applying the test (reg.1.05 Migration Regulations).
From 31 December 1989 a points test has existed for Skilled-Sponsored migrants and Independent migrants. The latest version of the points test came into operation on 1 July 2011 and is shown below.
Business migrants are subject to a different points test, which is not discussed in this chapter. Both Independent and Business migrants come within "Economic migration" (see below).
The points test is a mechanism used to help select skilled migrants who offer the best in terms of economic benefit to Australia. The points test creates a selection process that the Government says, is transparent and objective, awarding points to the skills and attributes considered to be in need in Australia. The 1 July 2011 points test is designed to select the best and brightest skilled migrants who will make the optimum economic contribution to Australia. It does not give undue weight to any one factor and recognises a broader range of skills and attributes, focusing on:
- better English levels;
- more extensive skilled employment;
- high level qualifications obtained in Australia and overseas; and
- better targeted age ranges.
Points will no longer be awarded for specific occupations, although all applicants must still nominate an occupation on the Skilled Occupation List (SOL) and have their skills assessed in their nominated occupation. The pass mark is the total amount of points needed to be eligible for grant of a visa and will be set at 65 points. A table summarising the points awarded can be found below. The points test only applies to applicants for the following visas:
- Subclass 475 Skilled Regional Sponsored
- Subclass 175 Skilled Independent
- Subclass 176 Skilled Sponsored
- Subclass 487 Skilled Regional Sponsored
- Subclass 885 Skilled Independent
- Subclass 886 Skilled Sponsored
To apply for one of the above visas, applicants need to satisfy the following threshold requirements:
- be under 50 years of age at the time of applying for a visa;
- meet the threshold English language requirement of competent English;
- nominate and hold a skilled assessment for an occupation on the Skilled Occupation List at the time of lodging their application; and
- provide evidence of recent skilled employment in a skilled occupation or have recently completed the Australian study requirement. Your nominated occupation is any occupation in which you have been employed for remuneration for at least 20 hours per week.
For the purpose of awarding points, the Department considers skilled employment in the nominated occupation or a closely related occupation. In determining whether an applicant’s skilled employment is closely related to their nominated occupation, the department will take into consideration the occupations within one unit group classified under Australian and New Zealand Standard Classification of Occupations (ANZSCO). Further information about ANZSCO can be found on the department’s website, www.immi.gov.au/employers/anzsco/.
Generally, applicants will be able to request an opinion about their skilled employment claims from the relevant assessing authority when seeking their skills assessment. For further information about this process, applicants should contact the relevant assessing authority. See: www.immi.gov.au/asri/a-z.htm
If you have never worked or if you have been unemployed for longer than twelve months in the past 24 months, you will not get any points in the skill sub-factor. (Note: International students applying within six months of completing their on-shore qualifications are the only people exempted from this basic work experience requirement
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Since 1 September 2007, there are nine General Skilled Migration (GSM) visa subclasses available to people onshore and offshore who are wishing to apply to migrate to Australia.
Onshore visa changes post-1 September 2007
- Old Subclass 880 becomes Subclass 885
- Old Subclass 881 becomes Subclass 886
- Old Subclasses 883 and 137 become Subclass 887
- Old Subclass 497 becomes Subclass 485
- Old Subclasses 495 and 882 become Subclass 487
Offshore changes post-1 September 2007
- Old Subclasses 136 and 861 become Subclass 175
- Old Subclasses 137 and 138 and 862 become Subclass 176
- Old Subclasses 495 and 496 and 863 become Subclass 475
- New Graduate Subclass 476 created
International students who are unable to meet the requirements for a permanent skilled visa have an opportunity to apply for an 18-month Skilled – Graduate visa (Subclass 485) to build on their skills and work experience. This visa will have unrestricted work rights. The Government says that the visa aims to ensure that overseas students who decide to stay on in Australia after completing their studies have a much better chance of competing for jobs in their chosen vocation.
Currently, migration law states that to enter immediately (see: Subclasses 175 and 885 in Sch.2 of the Migration Regulations), an independent migrant must gain 65 points in the Points Test, set out above, as it applies to the independent category. Independent category applicants cannot take advantage of the extra points for having a State or Territory Government sign a sponsorship (note that after 1 July 2011, being sponsored by a relative no longer gains an applicant any points unless the relative lives in a designated area of Australia. This change has effectively ended sponsored family migration in the skilled visa area except for Australian living in “designated areas”.
Designated Areas of Australia
Applicants for a Skilled – Regional Sponsored (Provisional) visa, who have a relative in that area gain extra points under the points test: The sponsor must be usually resident in one of the following designated areas:
| State or Territory | Designated Areas |
|---|---|
| Victoria | Anywhere |
| South Australia | Anywhere |
| Northern Territory | Anywhere |
| Tasmania | Anywhere |
| Aust Capital Territory | Anywhere |
| Queensland | Postcode areas 4019-4028, 4037-4050, 4079-4100, 4114, 4118, 4124-4150, 4158-4168, 4180-4899 (anywhere except Brisbane metropolitan area) |
| Western Australia | Postcode areas 6042-6044, 6126, 6200-6799 (anywhere except Perth metropolitan region) |
| New South Wales | Post areas 2311-2312, 2328-2333, 2336-2490, 2535-2551, 2575-2739, 2787-2898 (anywhere except Sydney, Newcastle and Wollongong) |
Intending business migrants cannot directly apply for a permanent visa except for the Subclass 132 (Business Talent) visa which requires the applicant to already have an overseas business worth at least $400,000 and turnover of at least $3,000,000. Not surprisingly, very few people qualify for this visa. Most business migrants rely on first obtaining a four year "provisional" business visa (Subclasses 160/161/162/163/164 and 165). These provisional visas are not points tested but depend on the applicant proving ownership interest in an off-shore business with a turnover of between $300,000 (Subclass 163) or $500,000 (Subclass 165) or having eligible investments worth at least $750,000 (Subclass 165) and net worth from $300,000 up to $1,125,000, depending on the provisional visa subclass.
In other words, it is not possible for a person to get a business visa to start a business or to invest in Australia, unless they are already a successful business person in their own country and either own a business or manage eligible investments or are in the top three layers of management of a "major" business (turnover of $50 million, see: Subclass 161) and have significant funds ($800,000 for the business plus $100,000 for settlement) to engage in a business activity in Australia.
The permanent business visas, which can be applied for generally at least two years after the temporary visa is granted, are Subclasses 890/891/892 and 893. These permanent visas are not points tested but do rely on the applicant having achieved their objective of owning a successful Australian business or having maintained an "eligible investment" (defined as State Treasury bonds).
Holders of provisional business visas or the older temporary four year "Independent Executive" (Subclass 457) visas can also apply for two other permanent business visas (Subclasses 845 and 846) that require applicants to prove that they have attained a certain level of business experience and success according to specific criteria, which include a special points test in Schedule 7 of the Migration Regulations. This points test grades applicants according to the size of the turnover of their business, their age, English language ability, and possession of capital available for transfer to Australia (see: Subclasses 845/846 in Sch.2 of the Migration Regulations).
To enter Australia under these visa classes requires a worker to be highly skilled and to have been formally nominated by an employer able to prove that a suitable Australian citizen or resident cannot be found to fill the vacancy. A labour agreement visa requires a written agreement between the government, the employer and the relevant trade union that a certain number of people can be allowed entry to Australia in a particular trade or profession (see: Subclasses 120 & 121 in Sch.2 of the Migration Regulations).
If your sponsor lives in a "designated area" of Australia, significantly lower standards are required in terms of skill levels etc., (see: Subclass 857). Details regarding specific regional areas can be viewed by checking the subclass number (857) at www.immi.gov.au.
The United Nations Convention Relating to the Status of Refugees ("the Convention"), as amended by the Protocol, defines a refugee as a person who:
Note
... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality, and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.Australia became a party to the 1951 Convention in 1954 and acceded to the 1967 Protocol on the Status of Refugees ("the Protocol") (to remove time and geographical limitations from the Convention definition of a refugee) in 1973.
As the number of refugees seeking to come to Australia is greater than the number of places available, not all persons who match the United Nations definition meet Australia's own criteria for determining refugee status and satisfy the prevailing program selection criteria. The DIAC administers both an on-shore and an off-shore program.
A Special Humanitarian Program (SHP) has been established to provide entry for people who do not meet the strict definition of a refugee, but are subject to gross discrimination or persecution and have close ties with Australia. In most cases the people will have left their home country, but this is not necessary. The connection with Australia is usually through a relative resident here, but may be through their own former residence here or through membership of an ethnic or religious community established in Australia.
Applications under the SHP are initiated by an Australian citizen or permanent resident nominating a person for entry. The person nominated will not be assessed under the points test, but must be capable of settling reasonably well in Australia.
For refugee settlement in Australia generally, DIAC has extensive details on its web page: see www.immi.gov.au. SHP visas normally lead to the grant of permanent residence. Persons applying for these visas can only do so from outside Australia.
It is possible to apply for refugee status within Australia or at the border. The criteria are stated in the Convention.
A successful applicant is granted a Subclass 866 Protection (Residence) visa (note that refugees applying from outside Australia are also granted permanent residence upon arrival). An unsuccessful applicant in Australia may appeal to the Refugee Review Tribunal. If, on appeal, the applicant is found not to be a refugee, the Minister may still overrule the regulations and grant a Protection visa under section 417 of the Migration Act if there are humanitarian grounds for entry.
All people who migrate to Australia must, before their entry is approved, pass a full medical examination and a police and security check.
For the review rights available where a sponsored or nominated person is refused migrant entry, see: "Review rights", below.
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ENTRY BY MIGRANTS :: Last updated: Thu Jul 1st 2010